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A recent decision of the Ontario Divisional Court has highlighted the expansive scope of an employer’s obligations to report critical injuries and fatalities to the Ministry of Labour (MOL).

Background

The decision concerns the Blue Mountain Resort in Collingwood, Ontario.On December 24, 2007, a guest at the resort drowned in a swimming pool located on the resort property.Blue Mountain did not contact or report the incident to the MOL, believing that, since the incident involved a guest of the resort (not one of its workers) and the fact that the swimming pool was unsupervised at the time of the accident, this was not a workplace incident which had to be reported to the MOL.

In early 2008, an MOL inspector visiting the facility (on an unrelated matter) learned of the incident and issued an order to comply with subsection 51(1) of the Occupational Health and Safety Act (the Act).Section 51(1) of the Act creates an obligation on employers to report critical injuries or fatalities at a workplace to the MOL.Section 51(1) states as follows:

Where a personis killed or critically injured from any cause at a workplace, the constructor, if any, and the employer, shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe. [Emphasis Added]

Decision of the OLRB and Divisional Court

The employer appealed the issuance of the order to the Ontario Labour Relations Board (OLRB). The OLRB agreed with the inspector and found that the employer ought to have reported the incident to the MOL. The employer appealed to the Ontario Divisional Court (the Court).The Court reviewed the two issues which were before the OLRB, stemming from subsection 51(1) of the Act:

the meaning of “person”; and

the meaning of “workplace”

The Court held that “person” should be given its plain and ordinary meaning.The Court rejected Blue Mountain’s position that “person,” in this context, should be interpreted to mean “worker” such that only a worker’s fatality or critical injury should trigger the reporting obligation under section 51(1).

Blue Mountain raised concerns about the practical application of the OLRB’s interpretation of “workplace” to include all 750 acres of land operated by Blue Mountain.Blue Mountain noted that it would be impractical to report every critical injury on its premises given the size of the facility and the fact that Blue Mountain ran a recreational facility that has some inherent danger.In addition, Blue Mountain argued that the application of section 51 to the entire site had the potential to seriously disrupt its operations given that s. 51(2) of the Act generally requires an employer to preserve the accident scene until an inspector deems otherwise.Blue Mountain argued that the OLRB’s decision “will have expanded its reach to realms of activity that are completely unrelated to worker health and safety.”

The Court noted that the Act should be given a broad and purposeful interpretation and that the definition of “workplace” under the Act1 was extremely broad.On the facts of this case, the Court easily found that the swimming pool was a place where workers did work and that the absence of a worker at the actual time of the incident did not change the fact that the swimming pool constituted a “workplace.”However, the Court also found that the OLRB’s interpretation that all of Blue Mountain was a workplace was overly broad in that it went beyond the purposes of the Act.The Court was not prepared to go as far as the OLRB’s holding that the entire Blue Mountain Resort was to be considered a “workplace” and subject to the scheme of the Act. The Court noted that each case needed to be decided on its own facts and that the reporting obligation would not be triggered absent some “nexus” between the site of the accident and worker safety.

In the end, the Court upheld OLRB’s decision, holding that in the facts of this case, the order was properly issued.

“Take Aways” for Employers

This decision highlights the potentially very broad scope of the reporting obligations to the MOL under the Act.Employers should use this decision as an opportunity to review their policies on reporting critical injuries at the workplace and preserving accident scenes.Arising out of this decision, employers should keep in mind that, under the broad definition of “workplace” which the Court has endorsed, any part of the employer’s property could be deemed a “workplace” if it is a location where a worker could be working or which has hazards that are common to workers and other individuals. In evaluating whether the reporting obligation has been triggered, employers should pay particular attention to whether a “nexus” exists between the accident location and worker safety.

At the time of publication, no application for leave to appeal had been made to the Ontario Court of Appeal.
1 "Workplace" means any land, premises, location or thing at, upon, in or near which a worker works.